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Kiska rejects all but one Smer-nominated judge

ONLY one of the six candidates nominated in a Smer-dominated vote in April to serve on the Constitutional Court for the next 12 years has met expectations that President Andrej Kiska and his team of advisors set for the top court. Thus Kiska will appoint only Supreme Court judge Jana Baricová, nominated by former president of the Supreme Court Štefan Harabin, to the Constitutional Court, where three judges will wrap up their term on July 4.

ONLY one of the six candidates nominated in a Smer-dominated vote in April to serve on the Constitutional Court for the next 12 years has met expectations that President Andrej Kiska and his team of advisors set for the top court. Thus Kiska will appoint only Supreme Court judge Jana Baricová, nominated by former president of the Supreme Court Štefan Harabin, to the Constitutional Court, where three judges will wrap up their term on July 4.

The president at the same time called on parliament to elect another four candidates so that he can pick the two remaining judges for the court, the SITA newswire reported. Kiska’s decision hit a raw nerve with Prime Minister Robert Fico and Speaker of Parliament Pavol Paška, who claimed that the president did not act in line with the constitution. Paška also said he does not see any reason to meet Kiska’s request to have submitted additional candidates.

Kiska has not offered any detailed explanation for why he picked Baricová.

“In the case of five candidates, I arrived at the conclusion that their professional qualities aren’t enough to perform as judges of the Constitutional Court,” said Kiska, as quoted by SITA. “I have not seen in their case a lasting interest in a constitutional judiciary, in constitutional law. Results of systematic work, which would prove their real interest in becoming the highest judges of this country, are lacking.”

According to Jozef Vozár, of the committee of presidential advisors, Baricová has displayed interest in constitutional law and also participated in an internship at the Constitutional Court, the Sme daily reported.

The president made his decision after conducting personal discussions with the candidates; he assessed information on the candidates from parliament as well as recommendations by experts in constitutional law. The president, however, has also said that his decision does not question the professional quality of the candidates for the positions where they currently perform.

Kiska noted that throughout his term all 13 judges of the Constitutional Court will change.

“It will be the fourth generation of constitutional judges who will take this top judicial job,” Kiska said.

The list of candidates elected by parliament included Baricová, Nitra Regional Court judge Ján Bernát, nominated by General Prosecutor Jaromír Čižnár; notary and university teacher Miroslav Duriš, nominated by head of the Chamber of Notaries Karol Kovács; Bratislava District Court chair Eva Fulcová, nominated by Kovács and dean of Comenius University’s Faculty of Law Pavol Kubíček; and Košice Regional Court chairman Imrich Volkai, a nominee of the dean of the Košice-based Faculty of Law of Pavol Jozef Šafárik University, Gabriela Dobrovičová. Juraj Sopoliga, a judge for the Košice Regional Court, nominated by Dana Bystrianska, president of the Slovak Association of Judges (ZSS) is the sixth nominee.

Watchdogs have panned Smer for its candidate list, suggesting that it stands in sharp contrast to Fico’s much publicised effort to purge the country’s judiciary, which became a key part of his failed presidential campaign.

Yet, Fico disagrees with Kiska’s proceeding and suggests that “the powers of the president start and end where he has the possibility to choose three of six” according to Sme.

The constitution says that the president ensures the normal operation of constitutional bodies of Slovakia, and in Fico’s opinion, Kiska has failed to do so. According to Fico, parliament has done everything it was supposed to do and the prime minister argues that he has not found any article of the law stating that if someone does not display a lasting interest in becoming a judge of the Constitutional Court, that this person cannot become such a judge.

Baricová

The senate of Baricová under the first government of Robert Fico confirmed the decision of the Bratislava Regional Court that the sittings of the government are not public and that the public is not entitled to hear recordings from these sittings. She is also known for accompanying Harabin on his foreign trips where, thanks to her knowledge of English, she interpreted for Harabin, according to Sme.

“We looked at the personality of the candidate and not who has proposed her,” Vozár said as quoted by Sme.

SUB: The parliament

“I respect Mr President and his view, but he must respect the legislative body,” said Paška, as quoted by SITA, who insists that parliament proceeded in line with the constitution.

Kiska, in his letter for Paška, explains his decision while referring to the committee that he established for reviewing the candidates. Yet, Paška responded that the constitution does not say that the president has to establish committees to screen nominees. The speaker also argued that all the elected judges met the conditions for appointment.

“The constitution does not talk about the suitability or unsuitability of the candidates,” Paška said, adding that he sees no reason for parliament to revise its decision.

The committee

Shortly after being nominated, Kiska established an advisory committee for assessing the suitability of candidates for the post of judges of the Constitutional Court.

Former Constitutional judge Ján Klučka, Supreme Court judge Zuzana Ďurišová, former Constitutional Court judge Juraj Babjak, former Judicial Council member and SAV member Jozef Vozár, and lawyer and advisor of the Constitutional Court Alexander Fuchs, sit on the committee.

The committee was to assess six candidates for the Constitutional Court and propose three, which Kiska would then actually appoint to the post. The recommendation of the committee was not binding for the president.

Kiska’s authorities

Meanwhile a discussion has emerged over the president’s authorities regarding the appointment of new constitutional judges.

Justice Minister Tomáš Borec, tasked by the government with examining the issue, turned to the Venice Commission and inquired whether the newly elected president may reject all of the proposed candidates and require parliament to submit a new list.

The Venice Commission on June 13 responded that the newly elected president “has no power under the constitution to reject all of the proposed candidates and require the National Council [parliament] to submit a new list”, according to an official release by the European Commission for Democracy through Law.